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November 17, 1976

Henry GOMEZ-LONDONO, Defendant

Dooling, District Judge.

The opinion of the court was delivered by: DOOLING


DOOLING, District Judge.

 Defendant was indicted on three counts: first, for having knowingly and wilfully made a materially false, fraudulent and fictitious declaration to Agents of the Customs Service, with respect to the amount of money that he was carrying on his person and in his luggage when he was preparing to board Avianca Airlines Flight No. 53 on February 22, 1976; second for wilfully transporting and causing to be transported via Avianca Flight No. 53 from John F. Kennedy International Airport (JFK) to Colombia, South America, $44,780. in United States currency having failed to file a report on Form 4790 as required by 31 U.S.C. 1101(b) and 31 C.F.R. §§ 103.23(a) and Section 103.25(b); and, third, for knowingly delivering to Avianca Flight No. 53 two 38 caliber firearms, and ammunition, for concealed transportation to Colombia, South America, to persons other than licensed importers, manufacturers, dealers or collectors without written notice to Avianca that the firearms and ammunition were being transported and without turning the firearms over to the pilot, conductor or operator of Avianca Flight 53.

 The facts are few, simple and have been completely stipulated both for the purposes of defendant's motion to suppress the evidence involved and to dismiss the several counts of the indictment, and for the determination of the issue of guilt, if the motions are not granted.

 On February 21, 1976, Drug Enforcement Administration agents told the United States Customs Agents that a reliable DEA informant had advised that a Henry Gomez-Londono would leave the New York area for Colombia, South America, during the period February 21, 1976, through February 25, 1976, taking with him $100,000 in United States currency to complete a narcotics transaction. The informant described Gomez-Londono as a man born October 12, 1950, and having brown hair, brown eyes, thick lips, broad nose, a square hairline, and a Colombian passport, No. 53 5124.

 The Customs Agents accordingly established a surveillance at Pan American World Airlines Terminal at JFK at the Avianca Airlines departure area. Nothing came of the surveillance on that day. On the next day, February 22, 1976, the Customs Agents again established a surveillance at the Pan American Terminal at JFK at the Avianca Airlines departure area. On that day an airline employee told the Customs Agents that a Henry Gomez-Londono was presently in the Avianca Airlines area. The Agents, after observing Londono, concluded that he was the man described by the DEA informer. As Gomez-Londono walked toward the Avianca Airlines departure area, two plain-clothes Customs Agents stopped him.

 Gomez-Londono had already surrendered his luggage to be checked on to the flight and had received his baggage checks. However, he had not yet checked himself in as a passenger, and he had not surrendered the coupon covering the trip from New York to Colombia. That coupon would not have been "lifted" until he reached the desk at the departure gate for Avianca Flight 53.

 After Gomez-Londono was stopped, a uniformed Customs Inspector, Robert Como, was brought over; he identified himself to Londono and also identified the plainclothes Customs Agents to Gomez-Londono as Agents Healey and Annunziata. A Pan American employee acted as a Spanish interpreter at this point. In addition to the three Customs Agents and the Pan American interpreter there were in the group near Gomez-Londono another Pan American employee and two Port of New York Authority Police officers. None of the latter three persons participated in questioning or in arresting Gomez-Londono. The two police officers were those regularly assigned to the Pan American Terminal to observe departing passengers.

 Upon being stopped, Gomez-Londono was advised of the provisions of 31 U.S.C. 1101(b), that is, that he was required to make a report declaring any money he was taking out of the country in excess of $5,000. He was then asked if he was taking out more than $5,000 in currency. He was asked a second time whether he had more than $5,000 and Gomez-Londono then told the Customs Agents that he had $900 in currency, and he took from his pockets and exhibited $900 in currency to the Customs Agents. After he was asked for a third time if he had more than $5,000, Gomez-Londono took an envelope from his jacket pocket and handed it to the Customs Agents saying that he did not know what was inside the envelope. The Customs Agents observed something green through an opening in the bulging envelope, and they opened the envelope and found that it contained $10,000 in $100 Federal Reserve notes together with a photograph of Londono. Gomez-Londono told the Customs Agents that he had been given the envelope to deliver to Bogota, Colombia.

 At that point Gomez-Londono was told that he was in custody. His airline ticket, passport and baggage claim tickets were taken from him. The luggage had already gone aboard the aircraft, but it was removed before the aircraft left the United States, and it was taken to the International Arrival Building along with Gomez-Londono. Only at this point was Londono advised -- in Spanish -- of his Constitutional rights, and he was then interviewed. Thereafter he was taken to the City office of the Customs Service for fingerprinting, and he was lodged at the Metropolitan Correction Center overnight. On the following morning Gomez-Londono was arraigned before the United States Magistrate.

 On the next following day, February 24, one of the Special Agents of the Customs service applied to the United States Magistrate for a search warrant. The affidavit recited the facts substantially as set forth above. An added paragraph stated that a DEA Agent had advised the affiant that the Special Agent in Charge of the DEA Bogota, Colombia, office had advised the Special Agent in Charge, by telephone from Colombia, that the original informant had furnished highly reliable information in the past, but that for security reasons no further information could be supplied. The warrant sought the right to search the luggage (valise and parcels) covered by Gomez-Londono's claim checks. The warrant was executed and $44,780 in United States currency was found concealed inside various items included with the valise and cartons that Gomez-Londono had checked onto the aircraft.

 The statute involved in the second Count of the indictment is 31 U.S.C. § 1101; it requires reports of exports of monetary instruments. 31 U.S.C. § 1058 makes wilful violation of Section 1101 a misdemeanor. Both Sections are part of the Currency and Foreign Transactions Reporting Act of October 26, 1970. The avowed purpose of the Act (Section 1051) is to require certain reports or records where such reports or records have a high degree of usefulness in criminal, tax or regulatory investigations or proceedings. The regulations of the Secretary of Treasury (authorized by Section 1053) give the generalized requirements of the Act precision of application. As the Supreme Court noted in California Bankers Assn. v. Shultz, 1974, 416 U.S. 21, 26, 94 S. Ct. 1494, 1500, 39 L. Ed. 2d 812,

". . . the Act's civil and criminal penalties attach only upon violation of regulations promulgated by the Secretary; if the Secretary were to do nothing, the Act itself would impose no penalties on anyone."

 Section 1101 of the Act provides (with immaterial exceptions) that whoever knowingly transports, or causes to be transported, monetary instruments from any place in the United States to any place outside it in an amount exceeding $5,000 on any one occasion shall file a report. The reports required are to be filed at such times and places, are to be in such form and detail as the Secretary requires, and may be required to contain the amounts and the types of monetary instruments transported. A printed form, Form 4790, has been established by the Treasury Department which is headed "Report of International Transportation of Currency or Monetary ...

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